Experts say controversy over new interpretation reveals deep sense of social and moral insecurity
Ng Tze-wei 21 August 2011
Few laws affect as many mainland citizens or embody Chinese social values as much as the Marriage Law, so the heated response to its recent court interpretation was inevitable, several legal and social commentators said.
However the controversy over what this law entails also reflected a deep sense of social and moral insecurity that no legal system alone can tackle, they warned.
A judicial interpretation announced by the Supreme People’s Court just over a week ago, clarifying grey areas, has left many wringing their hands.
A “mini divorce law” is how one lawyer describes it - two-thirds of the 19 clauses in the interpretation are rules on how to split property in the case of a divorce.
First passed in March 1950, the Marriage Law was the first of its kind in modern China, and sought mainly to “liberate women” and enshrine the concept of “one man, one wife”. It banned arranged or forced marriage, concubines and child brides and forbade any interference in widows getting remarried.
The first amendment was passed in 1980, at a time of great need for revitalised social relations after the Cultural Revolution. Most notably, it raised the minimum age for marriage for men from 20 to 22, and for women from 18 to 20. It also obliged couples to adopt planned birth.
A 2001 revision fleshed out details of different scenarios under which a divorce could be granted.
The Supreme People’s Court had been deliberating over a new interpretation since 2008. After several rounds of consultation with experts and one round of public consultation last November, it was finally issued on August 12.
The most controversial clause it contains is the one that says a house bought by parents for a newlywed son or daughter will be their child’s sole property unless otherwise specified.
This has created uneasiness as it clashes with traditional Chinese values of sharing everything in a family, says Lu Mingsheng, a family law expert at Beijing’s Dacheng Law Firm.
“On the other hand it reflects reality,” he added. “Property is becoming so expensive that parents often spend all their life savings or even sell their own house in order to ensure their child has a flat.
“At the same time marriage is becoming fleeting, and therefore parents often risk losing the most when a marriage turns sour.”
High divorce rates, skyrocketing property prices, materialism and a rise in extra-marital affairs are among the new realities the court is trying to account for.
Another reality involves the growing number of disputes over child-bearing, and this interpretation specifies a woman retains the sole right to decide whether to have or keep a child, although her spouse can use this as a basis to file a divorce.
While these are facts of life in today’s society, many still feel uncomfortable having them put down in black and white.
“Some people feel that the focus on how to split property demeans marriage and makes them feel insecure about marriage,” says family law expert Yang Xiaolin of Beijing’s Yuecheng Law Firm. “But the truth is that those who want to get a divorce will still go ahead with it. The interpretation will not lead to more divorces; it is only the court’s attempt to standardise rulings in a growing number of divorce cases.”
One major area that is still not well resolved is the clash between the Marriage Law and the 2007 Property Law. For example, what happens when one spouse sells a couple’s property behind the back of the other, or incurs personal debt on a jointly owned property?
Lu said he was disappointed at the scrapping of a clause in earlier drafts that stated a matrimonial home could not be sold if one spouse was selling it without the knowledge of the other.
He also said the rights of a spouse should trump those of any third party in terms of maintaining ownership of a home, in-keeping with other mainland laws that seek at least to provide shelter for the financially weaker side.
The interpretation failed to deal with the division of liability over debts owed to a third party, despite an attempt during earlier drafts, another lawyer said.
Another clause that was left out of the interpretation was one that effectively said a mistress could not sue for compensation from a married man. This was hotly debated when it was made public in the November draft.
Lawyers consulted on the interpretation said the clause required further discussions because extra-marital affairs came in many forms and a one-size-fit-all clause was not appropriate. For example, a man might have lied to his mistress about his marital status.
“The heated response reflects dissatisfaction at the ... high rate of divorce,” sociology professor Xia Xueluan of Peking University said. “Tackling moral issues with the law is not the best option, but perhaps it is the only option we have for the short term when social relations have become so fragile amid rapid economic development.
“What we need is a reconstruction of our traditional moral system, but that would take time.”
Lu said the government should do more to deal with the deep sense of insecurity among citizens.
“Property has become the only asset for most families, while the social safety net is weak, so those without a property feel that they have nothing,” he said. “These are problems beyond the ability of the courts to resolve.”
Yang said that in divorce cases an alimony system like those in Hong Kong and most western countries would help the financially weaker spouse feel more secure about starting life anew.
2 comments:
Law exposes unease at state of modern marriage
Experts say controversy over new interpretation reveals deep sense of social and moral insecurity
Ng Tze-wei
21 August 2011
Few laws affect as many mainland citizens or embody Chinese social values as much as the Marriage Law, so the heated response to its recent court interpretation was inevitable, several legal and social commentators said.
However the controversy over what this law entails also reflected a deep sense of social and moral insecurity that no legal system alone can tackle, they warned.
A judicial interpretation announced by the Supreme People’s Court just over a week ago, clarifying grey areas, has left many wringing their hands.
A “mini divorce law” is how one lawyer describes it - two-thirds of the 19 clauses in the interpretation are rules on how to split property in the case of a divorce.
First passed in March 1950, the Marriage Law was the first of its kind in modern China, and sought mainly to “liberate women” and enshrine the concept of “one man, one wife”. It banned arranged or forced marriage, concubines and child brides and forbade any interference in widows getting remarried.
The first amendment was passed in 1980, at a time of great need for revitalised social relations after the Cultural Revolution. Most notably, it raised the minimum age for marriage for men from 20 to 22, and for women from 18 to 20. It also obliged couples to adopt planned birth.
A 2001 revision fleshed out details of different scenarios under which a divorce could be granted.
The Supreme People’s Court had been deliberating over a new interpretation since 2008. After several rounds of consultation with experts and one round of public consultation last November, it was finally issued on August 12.
The most controversial clause it contains is the one that says a house bought by parents for a newlywed son or daughter will be their child’s sole property unless otherwise specified.
This has created uneasiness as it clashes with traditional Chinese values of sharing everything in a family, says Lu Mingsheng, a family law expert at Beijing’s Dacheng Law Firm.
“On the other hand it reflects reality,” he added. “Property is becoming so expensive that parents often spend all their life savings or even sell their own house in order to ensure their child has a flat.
“At the same time marriage is becoming fleeting, and therefore parents often risk losing the most when a marriage turns sour.”
High divorce rates, skyrocketing property prices, materialism and a rise in extra-marital affairs are among the new realities the court is trying to account for.
Another reality involves the growing number of disputes over child-bearing, and this interpretation specifies a woman retains the sole right to decide whether to have or keep a child, although her spouse can use this as a basis to file a divorce.
While these are facts of life in today’s society, many still feel uncomfortable having them put down in black and white.
“Some people feel that the focus on how to split property demeans marriage and makes them feel insecure about marriage,” says family law expert Yang Xiaolin of Beijing’s Yuecheng Law Firm. “But the truth is that those who want to get a divorce will still go ahead with it. The interpretation will not lead to more divorces; it is only the court’s attempt to standardise rulings in a growing number of divorce cases.”
One major area that is still not well resolved is the clash between the Marriage Law and the 2007 Property Law. For example, what happens when one spouse sells a couple’s property behind the back of the other, or incurs personal debt on a jointly owned property?
Lu said he was disappointed at the scrapping of a clause in earlier drafts that stated a matrimonial home could not be sold if one spouse was selling it without the knowledge of the other.
He also said the rights of a spouse should trump those of any third party in terms of maintaining ownership of a home, in-keeping with other mainland laws that seek at least to provide shelter for the financially weaker side.
The interpretation failed to deal with the division of liability over debts owed to a third party, despite an attempt during earlier drafts, another lawyer said.
Another clause that was left out of the interpretation was one that effectively said a mistress could not sue for compensation from a married man. This was hotly debated when it was made public in the November draft.
Lawyers consulted on the interpretation said the clause required further discussions because extra-marital affairs came in many forms and a one-size-fit-all clause was not appropriate. For example, a man might have lied to his mistress about his marital status.
“The heated response reflects dissatisfaction at the ... high rate of divorce,” sociology professor Xia Xueluan of Peking University said. “Tackling moral issues with the law is not the best option, but perhaps it is the only option we have for the short term when social relations have become so fragile amid rapid economic development.
“What we need is a reconstruction of our traditional moral system, but that would take time.”
Lu said the government should do more to deal with the deep sense of insecurity among citizens.
“Property has become the only asset for most families, while the social safety net is weak, so those without a property feel that they have nothing,” he said. “These are problems beyond the ability of the courts to resolve.”
Yang said that in divorce cases an alimony system like those in Hong Kong and most western countries would help the financially weaker spouse feel more secure about starting life anew.
Post a Comment